Posted
by
samzenpus
on Thursday August 28, 2014 @06:57PM
from the I-see-you dept.

An anonymous reader writes with this Ars piece about the executive order that is the legal basis for the U.S. government's mass spying on citizens. One thing sits at the heart of what many consider a surveillance state within the US today. The problem does not begin with political systems that discourage transparency or technologies that can intercept everyday communications without notice. Like everything else in Washington, there's a legal basis for what many believe is extreme government overreach—in this case, it's Executive Order 12333, issued in 1981. “12333 is used to target foreigners abroad, and collection happens outside the US," whistleblower John Tye, a former State Department official, told Ars recently. "My complaint is not that they’re using it to target Americans, my complaint is that the volume of incidental collection on US persons is unconstitutional.” The document, known in government circles as "twelve triple three," gives incredible leeway to intelligence agencies sweeping up vast quantities of Americans' data. That data ranges from e-mail content to Facebook messages, from Skype chats to practically anything that passes over the Internet on an incidental basis. In other words, EO 12333 protects the tangential collection of Americans' data even when Americans aren't specifically targeted—otherwise it would be forbidden under the Foreign Intelligence Surveillance Act (FISA) of 1978.

That data ranges from e-mail content to Facebook messages, from Skype chats to practically anything that passes over the Internet on an incidental basis.

None of those things existed, when the order was signed, though. And if none of the subsequent Presidents — including the current "tech-savvy" wonder — have abolished it since then (when the explosive use of computers made it truly dangerous), then is Reagan really to blame?

He also ramped up the war on drugs, something that so many freedom-hating scumbags in our government have done. So he wasn't a good president, and he definitely didn't want "small government."

But what does that have to do with him being to blame for this specific issue?

Whoops, no it wasn't Carter...it was Reagan:On December 4, 1981 President Ronald Reagan signed Executive Order 12333, an Executive Order intended to extend powers and responsibilities of US intelligence agencies and direct the leaders of U.S. federal agencies to co-operate fully with CIA requests for information.http://en.wikipedia.org/wiki/E... [wikipedia.org]

I wish, you had anything on-topic to offer, when you get "started"... The topic, in this case, being the abuse of the Executive Order 12333 [wikipedia.org] by the intelligence community decades after the order was signed.

THE FBI, CIA, a host of known and (still) unknown agencies. About 100 years ago, check your history on the "war on communism" civil rights leaders and just about anyone who spoke out against their political leaders or people that were rich and influential were being target. Howard Hughes, MLK Jr, John Kennedy (a little irony in a president being considered a communist who was battling communists) I could keep going with the list of famous people let alone e

Union breakerLook into the union that was broken. I knew a guy who was on the lines. His reaction? We deserved it. Basically they overreached on what they did for what they were asking for. Regan basically saw that air travel had ground to a halt. He took care of it. Any other president probably would have done something similar.

Nancy making decisions when he gets Alzheimer'sdo you have proof of that? and I do not mean 'internet truth' but real facts.

Besides, the father of "trickle-down", Art Laffer, was a dyed-in-the-wool Keynesian economist (and still is). Which means that he was a card-carrying member of the same group of nutjobs who are still advising the Fed (and the Feds) on economics.

You were responding to someone who derided "trickle-down". The problem being that the same school of thought that was responsible for "trickle-down" is still advising the President and the Fed.

You mentioned that Obama was a "constitutional scholar", and implied we should be more angry over that than over some actor. My point was that we should be at least as leery of Obama's economics as Reagan's. (And in fact, the Keynesian economics is not working any better now than it

Keynesian economics is more about controlling money's value through plain old supply and demand i.e. Government can cause inflation by spending at a deficit, reducing taxes and pumping money into the economy. The country was in a depression caused by deflation in the 1930's, so FDR's spending at deficts to fund Public works worked. The inverse would be that Government can cause deflation by increasing taxes, reducing spending and paying down the debt with inflated money. During the Carter Administration, th

Keynesian economics is more about controlling money's value through plain old supply and demand i.e. Government can cause inflation by spending at a deficit, reducing taxes and pumping money into the economy. The country was in a depression caused by deflation in the 1930's, so FDR's spending at deficts to fund Public works worked. The inverse would be that Government can cause deflation by increasing taxes, reducing spending and paying down the debt with inflated money. During the Carter Administration, they tried to fix an inflationary recession by miss-applying Keynesian economics and increased defict spending with disasterous results.

Currently with inflation at 1.5 - 2, the budget should be balanced and taxes moderate.

You're trying to teach your mistaken notions about economics to the wrong person.

Keynesian economics is largely about government interventionism. This is primarily what separates it from more objective macroeconomic theory.

And even mainstream economists today reject the idea that FDR brought the country out of the depression. On the contrary... many say he prolonged it for as much as 10 unnecessary years. His own Treasury secretary thought he was crazy.

Amazing how putting this on the front of your list just discredited your entire post instantly. Public labor unions are a particularly nasty parasite. The union in question, the Professional Air Traffic Controllers Union got overly greedy and demonstrated an epic level of hubris.

The results were not so good. Not only did they get burned permanently (the strikers weren't only fired, but banned permanently from employment with the Federal government), but they also set back all labor unions by swinging pu

> Ollie North - Marine helping to get weapons to Contras so they can kill communists. Good.

Congress said "don't do it". North ignored the will of congress, which represents the people. And in doing so, therefore ignored the will of the people. He ignored my representative, therefore, he ignored ME by proxy. I didn't take kindly to such things then, and I don't take kindly when Obama does it now.

Fuck you. You seriously believe this "job creator" myth? And all that other crap?

The only thing keeping Ronald Reagan from being the worst president in US history is W.

During Jimmy Carter's last year in office (1980), inflation averaged 12.5%, compared with 4.4% during Reagan's last year in office (1988).[122] During Reagan's administration, the unemployment rate declined from 7.5% to 5.4%, with the rate reaching highs of 10.8% in 1982 and 10.4% in 1983, averaging 7.5% over the eight years, and GDP growth average 7.9% with a high of 12.2% growth in 1982.[123][124]Ronald Reagan [wikipedia.org]

I guess you're too young to remember what's like living with double digit inflation, with double

Don't forget, unions also caused global warming. Also don't forget that flagrant mis-management that also lead to them needing a bailout, I would say the problems with GM had very little to do with unions actually, they are just an easy scapegoat.

Yeah, it had nothing to do with the massive miss management for years. They spent more time trying to legislate out foreign makers, rather than trying to make cars people wanted. But that has nothing to do with their decline.

Actually that's kind of the point, to some degree. It's now clear he was suffering from symptoms of dementia throughout his entire term, and they became especially pronounced near the end. His suggestibility and deteriorating mental health made him easy prey for those who wanted laws changed in their favor.

Nope. Because it is not law. It is how agencies view or interpret an existing law that has some ambiguity to it.

Other presidents have ammended the executive order so in a sense, you could say that even if it was invalidated for reasons like that, those presidents effectivly reinstated it. Now if it is ever found to violate the law or be unconstitutional by a court, it would be invalid.

President and agencies still swear to uphold the Constitution and have no business violating it, executive orders or not.Any orders ought to be followed to the extent the Constitution allows, not beyond, and those going beyond deserveto be punished. That should include Presidents, though such sanctions are pretty broken.

The POTUS is punished by Congress through impeachment. Nothing is really broken. Convince your fellow voters to vote for candidates willing to impeach the President and you'll get your results. What parts of the order do you think actually violate the Constitution?

Yes you should have to impeach someone to get them to follow the Constitution. That is what is outlined in the Constitution. Metadata isn't considered to be a part of your "effects" since it is third party information so it has nothing to do with the constitution. Collection of third party information without a warrant has been around since forever. The cops can go ask your neighbors about you. The neighbor can choose whether or not to talk to them.

Yes you should have to impeach someone to get them to follow the Constitution.

They swear to follow the constitution, so they should do that of their own volition.

Metadata isn't considered to be a part of your "effects" since it is third party information so it has nothing to do with the constitution. Collection of third party information without a warrant has been around since forever.

Bull-fucking-shit, government bootlicker. The government has absolutely no constitutional authority to conduct such surveillance on citizens without a warrant. If this sort of surveillance had been used against the founders, they would have taken steps to prevent the newly-formed government from doing the same thing, just like they did on a number of others issues that they faced at the time, and since the spirit of the cons

If this sort of surveillance had been used against the founders, they would have taken steps to prevent the newly-formed government from doing the same thing, just like they did on a number of others issues that they faced at the time, and since the spirit of the constitution is what matters, that's really what's relevant.

The owners of corporations are protected against unreasonable searches of their private business information, just like sole proprietors, or citizens in their data at home. As agents of the owners, corporate officers are the ones who should demand to see a warrant before granting a search.

The problem, of course, is that corporations mostly just do what the government wants.

You would too if the alternative was targeted malicious acts of discretionary prosecution against your corporation. This is the government that got caught red handed sicking the IRS on the enemies off the regime, something Nixon was impeached for.

1. He has, acting personally and through his subordinates and agents, endeavoured to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposed not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be intitiated or conducted in a discriminatory m

Those mean absolutely nothing. Nixon was never impeached, those article were never voted on by congress iutside of commity and the entire reason anyone knew about it was specifically because the IRS said no to him when he tried to do it. That was only brough in to pile on after the defying congress part with watergate.

What happened was that nixon tried to use the IRS and they said no then told congress. You are wrong on both accounts- no political audits happenned and Nixon was never impeached. There is a d

The government does have the authority to conduct such surveillance. They've been doing it for a long time.

Unconstitutionally, at that.

If you don't like it, then don't store your data on someone else's servers and give them ownership over it.

No. How about if *you* don't like the fact that the government doesn't have such powers, *you* can move to North Korea.

Again, the *spirit* of the constitution is what matters. This is just a lazy end-run around the constitution that idiots like you like to pretend is valid. Anyone with a brain can see it for what it is, but sadly, people without brains--like yourself--aren't capable of understanding logic. The constitution is often not interpreted literally. The idea that the gov

Second, and more to your points, sprinkled throughout the document are statements like, any intelligence collected concerning United States citizens must go through the FBI / Attorney General. This is so they can begin criminal investigations using the tools (read WARRANTS) to gain physical evidence of a crime. And the collection of that data, according to the order, is tangential to foreign intelligence gathering. As an example, here is 1.1(a)

(a) All means, consistent with applicable Federal law and this order, and with full consideration of the rights of United States persons, shall be used to obtain reliable intelligence information to protect the United States and its interests.

[Emphasis added]

This is 20(A):

(A) The Director of the Federal Bureau of Investigation shall coordinate the clandestine collection of foreign intelligence collected through human sources or through human-enabled means and counterintelligence activities inside the United States;

[Emphasis added]

So sticking to the topic at hand, namely that this order authorizes warrantless surveillance of United States citizens, is patently false. That may be the way it is used but that goes counter to the executive order's language.

By the way, the "human enabled means" is the metadata you are talking about.

The cops can go ask your neighbors about you. The neighbor can choose whether or not to talk to them.

Yet my email can't choose whether or not to be read by them. That's one reason why I encrypt everything whether it's needed or not.

The other reason I encrypt emails is the assinine spam filter a certain ISP uses that many times falsely detects my emails as spam and does not deliver them. I'm too much of a gentleman to mention the company by name, but it rhymes with Horizon and it starts with the letter V.

This is crazy. It seems Executive Orders are non-legislation afforded the impact of law.

Executive Orders should expire after a couple of years, or when a Presidential inauguration occurs, whichever comes first. Continuation should require Congress to pass it as ACTUAL law. And changes outside of that period MUST be ACTUAL LAW!!!!!

WTF!?!?!?!?

Sorry for the caps, I RTFA and it pissed me off.

I would suggest Executive Orders be done away with completely, they are an "I am the King" method of ruling. Not leading, ruling, controlling.

Wrong. Executive orders are supposed to be used when there is ambiguity in a law, when congress defers power to the administration, or where the constitution already gives the administration powers.

Executive orders are not I am King orders and without a basis of authorization like mentioned above, they will not survive a challenge in court. Unfortunately, administrations use them somewhat like a proclamation by the king but someone has to have standing in order to get the courts involved.

The rules were changed by Harry Reid to only need 51 votes for an appointment required by the Senate. The DNC has well over that 51 votes. Any problem getting those past the Senate has nothing to do with the GOP, it would have to do with his own party at this point. Been that way for about a year now.

That's not a bug, that's a feature. It's called the three "branches of government" for a reason. Executive, Legislative, and Judicial. Obama needs to work with Congress, not rule like a dictator by side-stepping the other two branches and creating "tzars" (38 so far, 33 under Bush).

The simple fact is that *most* executive orders are perfectly valid, and discontinuing them would serve no purpose.

A typical executive order simply designates procedures and requirements to be followed by people working for the Executive branch of the government. (Such as requiring that they not enter contracts with companies discriminating against employees for various reasons.)

This, however, is not a typical executive order. It is, quite simply, unconstitutional, and an explicit violation of laws written and passed by Congress. This is something that Congress, the States, and the People, *should* be getting upset about. Unfortunately, it won't happen, because roughly 50% of the country doesn't want to acknowledge anything that will make Republicans look bad, and roughly another half doesn't want to acknowledge anything that makes Democrats look bad. That leaves a few rational stragglers stuck in the middle, saying "WTF is up with you boneheaded ****wads?!!"

A typical executive order simply designates procedures and requirements to be followed by people working for the Executive branch of the government.

Which is EXACTLY what this executive order does. It is implementing at the Executive Branch the legislation to which it is based, namely the National Security Act of 1947 as amended. It even says so at the start of the order:

by virtue of the authority vested in me by the Constitution and the laws of the United States of America, including the National Security Act of 1947, as amended, (Act) and as President of the United States of America, in order to provide for the effective conduct of United States intelligence activities and the protection of constitutional rights, it is hereby ordered as follows:

Also, nothing in this executive order "led to" the warrantless wiretapping as alleged in the story. In fact, there are several places in the order that state that if US citizens are involved, it MUST go through the FBI / Attorney General. Read it. You will see what I mean.

Per your sig, which I love more than any other song to play on guitar (excepting Follow You Into the Dark, which my 4 year old daughter requests at bedtime, my son requests Jack and Diane...), we are all in a cage if there is an emperor. I thought, via Civics in high school, that we didn't have an emperor.

Executive orders are merely relatively formal written orders from the person in charge of the executive branch, the US President. If you do away with executive orders then no one is in charge and the only meager control you have is via Congress's power of the purse.

Actually executive orders are orders that excercise lawful powers given to the President by Congress.
The problem is that there are always lawyers making up their own interpretation of a vague law passed by Congress.
C'est La Vie.

The solution is to use and enforce EO's like they are supposed to be. Orders to the various federal troops, which are still bound and restricted by the laws of the land. Interpreting them as law should definitely be stopped. Removing them entirely though would mean that the President would not be able to formally control his branch of the government.

Yes it would. Congress wouldn't have the power to make such a broad law over the administration of presidential powers and if a president did so by executive order, the next could simply undo it.

What is needed is judicial review or something to ensure the lawfulness and constitutionality of them if half of congress requests or something. The courts do have original jurisdiction over these issues as they often determine the lawfulness and constitutionality of government.

Maybe the NSA can figure out who stole your first 'D'.
Having gotten that out of my system, I agree with you. Tax cuts for the rich, attacks on unions, support for right wing dictators - the list goes on and on.

A friend of my sister's worked for NSA for eight years in the 1960s. At that time the fact of its existence was classified - insiders said the acronym stood for "No Such Agency". He spent most of those eight years in a shack on a hill in Japan, listening and recording phone calls and telegraphs in and out of Japan. He came out of those eight years imbued with an extreme level of paranoia that he never did shake off. It cost him his marriage among other things.

So 1981 wasn't the beginning. I would be more likely to think that the directive in question was created to paper over and legalize what had been going on for decades before. The agency was founded by Harry Truman in 1952 based on signals intelligence units from WWI, per Wikipedia. I saw an article recently which asserted that spying on foreign (and some domestic) entities really came out of the period before and after World War I, and it made sense.

Having said all that, I recently learned that the NSA is not just "spooks peeking into our bedrooms" and getting everyone upset. That is just one of three branches.

- Signals Intelligence Directorate is the one that has been upsetting people, and may in fact be as crazy as people think they are;

- Information Assurance Directorate one might consider the "good guys" - they are working with US industry and agencies to prevent security breaches - one might consider this the "anti-spy" group, and you'll see guys from IAD at conferences regarding improvement of the security infrastructure of the net, to prevent spying and other problems. By all accounts the Information Assurance Directorate is working very hard to protect us, and has had some successes preventing or stopping serious hacking and other incidents against both public and private organizations in recent years that they, of course, can't ever tell anyone.

- Technical Directorate, which I assume is the people inventing the HW and SW the rest of the gang uses.

TL;DR - don't paint the whole of NSA with the same tar and feathers. Some, at least, are out there actively helping with things like Tor as we read recently - spy agencies including NSA have regularly helped Tor find and fix bugs, even while other groups in the same agency are trying to exploit them.

Yes some hints where given via the Martin and Mitchell defection in 1960 https://en.wikipedia.org/wiki/... [wikipedia.org] too
"As we know from our previous experience working at N.S.A., the United States successfully reads the secure communications of more than forty nations, including its own allies."

Read the FA. THe summary doesn't explain exactly what is happening. EO 12333 originally allowed for collection of data abroad, but today, the collection happens in the USA -- in domestic Internet hubs. Naturally, the vast majority of the data scooped up this way is purely domestic and concerns US citizens, but the NSA claims that this is purely incidental. That's right -- the majority of the collection is "incidental". Yeah, right.

FISA? That rubber stamp is bypassed while collecting masses of data on US citizens.

"This program was started at least back in 2001 and has expanded to between 80 and 100 tap points on the fiber optic lines in the lower 48 states," he said by e-mail. "Most of these fiber optic tap points are not on the East or West coast. This means that the primary target of this collection is domestic... Most collection of US domestic communications and data is done under EO 12333, section 2.3 paragraph C in the Upstream program. They claim, near as I can tell, that all domestic collection is incidental. That's, of course, the vast majority of data."

It's good to see that EO12333 has been placed in the spotlight. It always irked me how it tries to run around the constitution. The whole order is filled with phony "prohibitions" on government power with open-ended exceptions that can be invoked at any time.

My favorite parts:

2.3Collection of Information.(e) Information needed to protect foreign intelligence or counterintelligence sources or methods from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other agencies of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence agency contractors or their present or former employees, or applicants for any such employment or contracting;

So basically any government agency can be tasked to collect domestic information without the pesky oversight the FBI has to deal with.

2.4Collection Techniques. Agencies within the Intelligence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Agencies are not authorized to use such techniques as electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes. These procedures shall not authorize:

(b) Unconsented physical searches in the United States by agencies other than the FBI, except for:
(1) Searches by counterintelligence elements of the military services directed against military personnel within the United States or abroad for intelligence purposes, when authorized by a military commander empowered to approve physical searches for law enforcement purposes, based upon a finding of probable cause to believe that such persons are acting as agents of foreign powers; and
(2) Searches by CIA of personal property of non-United States persons lawfully in its possession.(c) Physical surveillance of a United States person in the United States by agencies other than the FBI, except for:
(1) Physical surveillance of present or former employees, present or former intelligence agency contractors or their present of former employees, or applicants for any such employment or contracting; and
(2) Physical surveillance of a military person employed by a nonintelligence element of a military service.

They've tried to be clever and hide what they did here with a double negative spread across two clauses. Effectively all defense contractor employees are subjected to domestic spying which was part of the rationale for justify creating the surveillance apparatus. They don't disclose that when you sign the contract suspending your rights when you apply for a security clearance. Note that that much of the internet enabled surveillance programs were instituted pre-9/11 under Clinton and not by Bush2 and this was going on before the PATRIOT act madness.

2.5Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that A

After hearing so many of these stories, I have to wonder: Do these orders of govt agencies "slurping up" data, whether American citizens or not, include encrypted communications, or are they disgarded as it would take more time to "get to the meat" of things?

It depends on why the data was collected.
Globally the NSA and its friends collect it all.
If your telephone number is of interest, email, net use or social media use is of interest then its sorted, indexed, voice print is kept.
In the old days it was keywords, now its hops to people of interest and your own political, social activity and that of your friends or friends friends.
Your camera sensor pattern noise/noise signature, cell tracking, car...
Just the fact a person feels the need to use 'encrypted c

Bullshit. It's ILLEGAL, period. Executive orders don't trump acts of congress, and acts of congress don't override the constitution. Every NSA minion involved in collecting this data without a warrant issued by a judge naming a specific person and stating what they're looking for and why, is a CRIMINAL.

What is interesting is that order was executed in the final years of the Cold War. There was no "Internet" so it is doubtful that this was the intent. However, we were still in a Cold War with the Soviet Union. And, there were communist sympathizers here in the US who would be subject to this surveillance. Additionally, the drug cartels and weapons trade were in high gear (ala Iran/Contra). So, given this context, it is understandable WHY this order was created and issued in the first place.

I doubt President Reagan envisioned the rise of the internet and the privacy concerns that the budding.com businesses would generate.

Where the fault does lay is that when these avenues did arise, is with the continued existence and extension of the initial order. This finger points directly at GHB, Clinton, GWB and now Obama. And, I would focus more on GHB given his close affiliation and vested interest with the intelligence communities. The dangers were well known by Clinton/Gore with the desire to push the Skipjack encryption algorithm into everything...right until it was revealed that the LEA (Law Enforcement Access Key...ala LEAK) key code could be forged rendered it a non-starter - it didn't meet National security needs once that was revealed and the common folk and business community would never accept it. RSA Laboratories was the key vendor of secure encryption at this point and fought against Skipjack. With that battle lost, sights turned elsewhere and we KNOW RSA's new overloads (EMC) sold us out for $10M. It was the perfect subject of a compromise given the pervasiveness of their products. I would venture their right to continue to exist was at stake and the $10M was simply a means to cover up the coehersion.

Ultimately, nobody but the brakes on this surveillance and we know where it has since led.

2. A lot (not all) of this would not be a problem if people would realize the simple fact that nothing on the Internet is truly private.

Why not apply the same thing to your house, your phone calls, and every other thing that the government wants to spy on? Just because your privacy *can* be violated, that doesn't mean it *should* happen. You can have a relatively private conversation on the Internet, and especially if you use encryption.

This would still be a problem if people believed that there is no privacy on the Internet. The government should not be collecting all this information to begin with.